1. ' MUHAMMAD AFZAL ZULLAH, CJ-These two appeals have arisen out of an inheritance matter. After some discussion on the question of the application of the Islamic Law of Inheritance to the cases like the present one and the effect of the judgment of this Court in the case of Abdul Ghafoor v.
2. Muhammad Shall (PLD 1985 SC 407) the learned counsel agreed and rightly so that the matter should be decided in accordance with the said law. And for that purpose they further agreed that the matter should be remanded to the High Court. The leave grant order reads as follows:-- "The petitioner seeks leave to appeal against the judgment dated 2-1-1990 of the High Court.
3. ' The facts, in brief, are that one Maula Bakhsh, the predecessor-ininterest of the parties, was the last male owner who was governed under custom. He died in 1924 leaving behind the following heirs:--
(i) Mst. Allah Jawai, his sister and predecessor-in-interest of the present petitioner;
(ii) Mst. Jiwan widow, and
(iii) Mst. Zainab Bibi, daughter."
4. ' A mutation for the land was sanctioned in favour of his widow Mst. Jiwan. Mst. Jiwan alienated some property through gift in favour of two sons of her daughter, namely, Faqir Ali, deceased and Nazir Ali, the present respondent. Some of the reversioners of Maula Bakhsh challenged the gift.
5. During the pendency of appeal before the High Court, Faqir Ali died and his legal representatives were not brought on record. The High Court accepted the appeal of the reversioners to the extent of share of Nazir Ali, but with regard to the share of Faqir Ali, the appeal was held to have abated.
6. Mst. Jiwan died in 1960. After her death, the petitioner's predecessor-in-interest Mst. Allah Jawai instituted a suit for possession on the basis of Muslim Personal Law (Shariat Application) Act, 1948.
7. The suit of the petitioner was dismissed by the trial Court on 29-6-1963 as Mst. Allah Jawai was not found to be the sister of Maula Bakhsh deceased, the last full owner. On appeal by Mst. Allah Jawai, the same was partly accepted by the Additional District Judge on 5-9-1963 and the possession of the decretal property was delivered to her. The Additional District Judge had held that Mst. Allah Jawai being sister of the deceased Maula Bakhsh was entitled to a share of 7/16 as Muslim law heir in the property left by Maula Bakhsh. Mst. Allah Jawai instituted R.SA. No 422 of 1965 before the High Court whereas Nazir Ali, respondent, filed RSA No, 284 of 1965. Both these apeals were fixed for 30- 5-1984. The Appeal No, 422 of 1965 was dismissed for non-appearance of the counsel for the Appellant whereas Appeal No, 284/65 was adjourned. A petition for restoration of appeal No, 422 of 1965 is pending in the Nigh Court. The appeal of respondent Nazir Ali R.SA. No,284/65 was dismissed as having abated in view of section 2-A, clauses (a) and (c) of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, by the High Court on 1-6-1985. It was observed in the order that "the appeal shall abate whereas the decree under appeal has become void". The petitioners instituted a Review petition but it was dismissed by the High Court. The petitioners assailed the order of the High Court in this Court in C.P. S.LA No, 768 of 1977 which was dismissed on the ground that the same was barred by Arne. The respondent filed an application under section 144, C.P.C. On 24-6-1985 for restoration of possession of the land. This application was accepted by the Civil Court on 1-3-1989. The petitioners' appeal and revision were dismissed by the appellate and revisional Courts on 17-12-1989 and 2-1-1990 respectively.
8. The learned counsel for the petitioners submitted that the learned High Court wrongly construed that the suit filed by the predecessor-in-interest of the petitioners was barred under custom because the suit was filed under the Muslim Law of Inheritance and it was decreed being a right of inheritance under the Shariat Act. The petitioners claimed the share of 7/16 as the sister was granted under the Muslim Law of Inheritance and this fact escaped the notice of the Courts below.
9. As regards the dismissal of their earlier petition by A this Court, it has been contended that that was not dismissed on merits but on the ground of limitation, therefore, the decree granted under the Shariat Law could not become void and such question could not be reopened in the execution proceedings.
10. ' The contention raised by the learned counsel requires examination."
11. Both the learned counsel stated that the question whether Mst. Allah Jawai was a sister of the last male holder Maula Bakhsh not having been decided by the High Court, the case should be remanded to it, so that the parties should have opportunity if needed of taking the matter to Supreme Court. They, as already noted, agreed that regardless of the legal technicalities (including of abatement, finality of orders) the controversy regarding inheritance should be decided on the basis of the Islamic Law on the subject. They also agreed that Mst. Jiwan the widow had held the prorerty as limited owner, therefore, the devolution under the Islamic Law shall be in accordance with the said position of the estate of Mst. Jiwan. They have also agreed that in case of a positive finding by the High Court that Mst. Allah Jawai was the sister of the deceased, last male-holder, she would get her share in accordance with Islamic Law and same will be the position of the two other heirs; namely, Mst. Jiwan widow and Mst. Zainab Bibi, daughter. They would also get their respective shares under the Islamic Law. The gift made by Mst. Jiwan widow to the two sons of Mst. Zainab Bibi shall be treated as void and non-existent. However, it will be open for the High Court to distribute the share of the widow Mst. Jiwan in accordance with Islamic Law of Inheritance.
12. ' Counsel's conduct is commendable, as conducive to Islamic culture litigation.
13. ' The agreement reached by the learned counsel thus is fair and in accordance with the spirit of the Islamic Law of Inheritance. We accepting the said agreement, accordingly, allowed this appeal partly and remand the case to the High Court for the purpose abovestated. There shall be no order as to costs.